Employment: Employee Free Choice Act (EFCA)


As we have seen on so many occasions, the name or nickname of a new law often misstates its true purpose. One such law on the horizon is the Employee Free Choice Act (“EFCA”). If enacted, EFCA will make fundamental changes to the National Labor Relations Act, which governs the relationship between employers and employees. Non-unionized employers especially need to be wary of EFCA because it eases the process for unionizing your workers.

Currently, under the National Labor Relations Act, if a union wants to unionize a particular employer, it must obtain signed union authorization cards from at least 30% of the employees it seeks to unionize. Often times, unions will not submit the authorization cards unless more than half of the employees have signed the cards. If the union submits the cards to the National Labor Relations Board, the Board will set a date for an election. Both the union and the employer then campaign on the pros and cons of union representation and the employees vote by secret ballot. Unions lose approximately half of the certification elections, and they never know which employees voted for or against the union representation.

If EFCA becomes law, unions will be able to bypass the election process entirely simply by proving that a majority of employees in a given work unit have signed authorization cards. Once the NLRB verifies the accuracy of the authorization cards, the employer is legally obligated to recognize the union and to negotiate a collective bargaining agreement.

Card-based union certification would happen without the benefit of a campaign period during which both the union and the employer would educate employees about the pros and cons of unionization. It would also occur without the fairness of a secret ballot and NLRB-supervised election process. Conceivably, an employer could be completely unaware of a union organizing campaign until it is advised that a union now represents one or more groups of its employees.

Once the union has been certified as the employees’ bargaining representative, EFCA stipulates the parties must begin contract negotiations within ten days and come to an agreement on a union contract within 90 days. If they fail to agree to a union contract, either party would have the right to request a mediator from the Federal Mediation and Conciliation Service. If the parties still fail to agree on a contract, the FMCS would compel them to arbitration. The arbitrator’s decision on the terms of the union contract is final, unappealable, and binding for two years. This process fundamentally changes an employer’s ability to negotiate in good faith, but refuse to sign an agreement that it does not support. If an employer chooses to risk a strike, it is free to walk away from the negotiations. Under EFCA, a newly unionized employer must abide by an agreement set by an arbitrator if the parties cannot agree on their own to the terms and conditions of employment.

Most significantly, these signed certification cards do not have an expiration date. Thus, if EFCA passes, employers will need to begin a never ending election campaign to educate its workforce. First, employees need to understand the legal significance of signing a union certification card. Second, employers need to know that a union may approach your employees not only at the office, but also at home and other public places. Third, employees need to understand what unions can and cannot do for them before they are presented with the decision of whether to sign the authorization card. Finally, employers need to review or implement a lawful no-solicitation / no-distribution policy and ensure that they are enforced consistently and uniformly.

In 2007, this law passed the House of Representatives and was defeated on a procedural motion in the Senate. With the Democrats’ majorities in both the House and Senate and President-elect Obama’s stated intention to sign the bill, passage of EFCA could come very quickly.

By Michael C. Redman, mredman@dsda.com

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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